Thoughts and News on Criminal Justice and Correctional Policy in California

Tuesday, September 28, 2010

9th Circuit Further Delays Brown's Execution

Today, the 9th Circuit intervened in the Brown case, remanding it to the district court for a thorough comparison between the old and new execution regulations. The full text of the 9th Circuit decision is here.

The decision argues that Judge Fogel's compromise, by means of giving Brown a choice between a one-drug and a three-drug execution, is unsubstantiated by law.

The district court’s decision to provide Brown the choice of a one drug option is not consistent with California state law and procedures. California law does not provide the condemned a choice between a three-drug protocol or a one-drug option. The only choice provided is between lethal gas or lethal injection. Cal. Penal Code § 3604 (West 2010). Other states also provide thecondemned a choice of methods of execution. See, e.g., Va. Code Ann. § 53.1-234 (West 2010) (choice between electrocution or lethal injection); Wash. Rev. Code § 10.95.180 (West 2010) (choice between intravenous injection or hanging). The one-drug option was not adopted by the State in response to the conditional order regarding Morales nor in the new procedures revised in response to the Morales litigation. Thus, the State has not, in its protocol, devised or implemented procedures for the single-drug injection. There is a dispute whether the State hassufficient supply to implement such an option. In addition, the State advises that its current supply of sodium thiopental has an expiration date of October 1, 2010. Further, the State has understandably not adopted procedures or implemented training on the one-drug option and claims it would need at least three days to do so. Despite the best of intentions on the part of the district court to fashion a compromise and a choice of methods here, imposing on Brown such a choice between the new three-drug protocol and a one-drug option never adopted by the State places an undue burden on Brown and is beyond the power and expertise of the district court at this juncture. The result in this case should not be driven by compromise nor by the State’s deadlines superimposed on the district court’s already pending review of the new execution protocol.

. . .

For these reasons and in light of this background and the district court’s findings regarding the risk of unconstitutional pain inhering in the prior three-drug protocol, this matter is remanded to the district court to determine whether, under Baze, Brown is entitled to a stay of his execution as it would be conducted under the three-drug protocol now in effect. Specifically, the court should address the similarity between the previous O.P. 770 and Cal. Code Regs. tit. 15 § 3449 et seq., as well as the court’s statement that, with respect to the constitutionality of the State’s previous execution protocol, “it likely would have made the same findings and reached the same conclusions under the ‘demonstrated risk’ standard” adopted by the three Justices in Baze. The district court should also consider the standards for a stay as articulated in Nelson v. Campbell, 541 U.S. 637, 649-50 (2004).

Given this order, and the fact that it is now Wednesday night, my understanding is that there is no execution happening Thursday evening. Please stay tuned.

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